Unpublished Disposition, 884 F.2d 1394 (9th Cir. 1989)

MEMORANDUM^** 

Timothy Boudette appeals the district court's denial of his motions to proceed in forma pauperis and for the recusal of Judge Hardy. We reverse the court's denial of the first motion, and remand for further proceedings in forma pauperis. We affirm the court's denial of the recusal motion.

Although it appears that both the judge and the prosecutor mentioned by Boudette as having been instrumental in the denial of his constitutional rights are immune from suit under 42 U.S.C. § 1983, see Imbler v. Pachtman, 424 U.S. 409, (1976); Crooks v. Maynard, 820 F.2d 329, 331-32 (9th Cir. 1987), vacated and remanded on other grounds, 108 S. Ct. 744 (1988), Boudette's complaint could possibly be amended to raise arguable questions of municipal liability. See, e.g., Hammond v. County of Madera, 859 F.2d 797, 801 (9th Cir. 1988); Crooks v. Maynard, 851 F.2d 1562, 1563 (9th Cir. 1988) (per curiam). Although this complaint failed to state a claim, a complaint filed in forma pauperis is not automatically frivolous within the meaning of 26 U.S.C. § 1915(d) because it fails to state a claim. See Neitzke v. Williams, 109 S. Ct. 1827, 1833-34 (1989). Accordingly, the district court should have allowed Boudette to proceed in forma pauperis.

Finally, because Boudette failed to allege an extrajudicial source of bias in support of his motion seeking the recusal of Judge Hardy, the district court did not err in denying it. See e.g., Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988).

The cause is remanded for further proceedings without prejudice to a Rule 12 dismissal, if after service and notice, the plaintiff still fails to state a claim.

AFFIRMED in part, and REVERSED and REMANDED in part.